LEVI ▇▇▇▇▇▇▇ & CO.
SECOND AMENDMENT
TO 1997 SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND
LIMITED WAIVER
This SECOND AMENDMENT TO 1997 SECOND AMENDED AND RESTATED
CREDIT AGREEMENT AND LIMITED WAIVER (this "AMENDMENT") is dated as of September
29, 2000 and entered into by and among Levi ▇▇▇▇▇▇▇ & Co., a Delaware
corporation ("COMPANY"); the financial institutions party hereto ("BANKS"); Bank
of America, N.A. as Agent for Banks ("AGENT"); and Bank of America, N.A. as
Collateral Agent for Banks ("COLLATERAL AGENT"), and is made with reference to
that certain 1997 Second Amended and Restated Credit Agreement dated as of
January 31, 2000, as amended by First Amendment to 1997 Second Amended and
Restated Credit Agreement and Limited Waiver dated as of July 31, 2000 (the
"CREDIT AGREEMENT"), by and among Company; Banks; the several financial
institutions party thereto as Senior Managing Agents; the several financial
institutions party thereto as Managing Agents; the several financial
institutions party thereto as Co-Agents; Agent; and Collateral Agent.
Capitalized terms used herein without definition shall have the same meanings
herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, Company and Banks desire to amend the Credit
Agreement as set forth below; and
WHEREAS, Company has requested Banks to waive certain
provisions of the Credit Agreement as set forth below.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 AMENDMENTS TO ARTICLE VI: AFFIRMATIVE COVENANTS
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A. Sections 6.11(a)(ii) and 6.11(a)(iii) of the Credit
Agreement are hereby amended to read in their entirety as follows:
"[intentionally omitted]"
B. Section 6.11(c) of the Credit Agreement is hereby
amended to read in its entirety as follows:
"Derivative/FX Contracts. Company shall use its reasonable
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efforts to deliver to Agent executed copies of amendments to the existing master
agreements pursuant to which
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Lender Derivative/FX Contracts are issued providing that the obligations of
Company and FinServ under such agreements will be secured by the Collateral
Documents (as defined in the Bridge Credit Agreement)."
1.2 AMENDMENTS TO ARTICLE VII: NEGATIVE COVENANTS
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A. Section 7.1(f) of the Credit Agreement is hereby
amended by deleting the reference to "$5,000,000" contained therein and
substituting "$25,000,000" therefor.
B. Section 7.1(t) of the Credit Agreement is hereby
amended by deleting the reference to "$5,000,000" contained therein and
substituting "$10,000,000" therefor.
C. Section 7.2(r) of the Credit Agreement is hereby
amended by deleting the reference to "$2,000,000" contained therein and
substituting "$10,000,000" therefor.
D. Section 7.2 of the Credit Agreement is hereby amended by
(i) deleting the word "and" at the end of clause (t) thereof; (ii) deleting the
period at the end of clause (u) thereof and substituting the phrase "; and"
therefor; and (iii) adding the following as new clause (v) thereof:
"(v) Negative Pledges with respect to property of Company and
its Subsidiaries contained in documentation for any Capital Markets Transaction
permitted by Section 7.1(m) provided such Negative Pledges (i) expressly permit
Liens in favor of Agent and Liens on equipment subject to Equipment Financing
Transactions, real property subject to Real Estate Financing Transactions,
accounts receivable subject to Permitted Foreign Receivables Purchase Facilities
and property subject to any other Lien permitted by Section 7.2 and (ii) do not
require the Securities issued in such Capital Markets Transactions to be secured
by such permitted Liens."
E. Section 7.3(m) of the Credit Agreement is hereby
amended by deleting the reference to "$2,000,000" contained therein and
substituting "$10,000,000" therefor.
SECTION 2. WAIVER
2.1 WAIVER OF SECTION 6.11(c)
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The undersigned Banks, constituting Majority Banks under the
Credit Agreement, hereby waive compliance with the provisions of Section 6.11(c)
of the Credit Agreement for the period commencing on August 31, 2000 to and
including the date of this Amendment.
2.2 LIMITATION OF WAIVER
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Without limiting the generality of the provisions of Section
10.1 of the Credit Agreement, the waiver set forth herein shall be limited
precisely as written and relates solely to a waiver of compliance by Company
with the provisions of Section 6.11(c) of the Credit Agreement in the manner and
to the extent described above, and nothing in this Amendment shall be deemed to
(a) constitute a waiver of compliance by Company with respect to (i) Section
6.11(c) of the Credit Agreement in any other instance or (ii) any other term,
provision or
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condition of the Credit Agreement or any other instrument or agreement referred
to therein or (b) prejudice any right or remedy that Agent, Collateral Agent or
any Bank may now have or may have in the future under or in connection with the
Credit Agreement or any other instrument or agreement referred to therein.
SECTION 3. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Banks to enter into this Amendment and to
amend the Credit Agreement in the manner provided herein, Company represents and
warrants to each Bank that the following statements are true, correct and
complete:
A. CORPORATE POWER AND AUTHORITY. Company has all
requisite corporate power and authority to enter into this Amendment and to
carry out the transactions contemplated by, and perform its obligations under,
the Credit Agreement as amended by this Amendment (the "AMENDED AGREEMENT").
B. AUTHORIZATION OF AGREEMENTS. The execution and deli-
very of this Amendment and the performance of the Amended Agreement have been
duly authorized by all necessary corporate action on the part of Company.
C. NO CONFLICT. The execution and delivery by Company of
this Amendment and the performance by Company of the Amended Agreement do not
and will not (i) violate any of its Organization Documents or any order,
judgment or decree of any court or other Governmental Authority binding on
Company, (ii) conflict with, result in a breach of, constitute a default under,
or require the termination of, any Contractual Obligation of Company, except
where such conflicts, breaches, defaults and terminations, in the aggregate,
would not have a Material Adverse Effect, (iii) result in or require the
creation or imposition of any Lien of any nature whatsoever upon any of the
properties or assets of Company (other than pursuant to the Collateral
Documents) or (iv) require any approval of stockholders or any approval or
consent of any Person under any Contractual Obligation of Company except where
the failure to obtain such approvals and consents would not, in the aggregate,
have a Material Adverse Effect.
D. GOVERNMENTAL CONSENTS. The execution and delivery by
Company of this Amendment and the performance by Company of the Amended
Agreement do not and will not require any registration with, consent or approval
of, or notice to, or other action to, with or by, any Governmental Authority.
E. BINDING OBLIGATION. This Amendment and the Amended
Agreement have been duly executed and delivered by Company and are the legally
valid and binding obligations of Company, enforceable against Company in
accordance with their respective terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or limiting creditors' rights generally or by equitable principles relating to
enforceability, whether enforcement is sought in a proceeding at law or in
equity.
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SECTION 4. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND
THE OTHER LOAN DOCUMENTS.
(i) On and after the date hereof, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof", "herein" or words
of like import referring to the Credit Agreement, and each reference in
the other Loan Documents to the "Credit Agreement", "thereunder",
"thereof" or words of like import referring to the Credit Agreement
shall mean and be a reference to the Amended Agreement.
(ii) Except as specifically amended by this Amendment, the
Credit Agreement and the other Loan Documents shall remain in full
force and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this
Amendment shall not, except as expressly provided herein, constitute a
waiver of any provision of, or operate as a waiver of any right, power
or remedy of Agent, Collateral Agent or any Bank under, the Credit
Agreement or any of the other Loan Documents.
B. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
C. COUNTERPARTS; EFFECTIVENESS. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Amendment shall become
effective upon the execution of a counterpart hereof by Company and Majority
Banks and receipt by Company and Agent of written or telephonic notification of
such execution and authorization of delivery thereof.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
LEVI ▇▇▇▇▇▇▇ & CO.
By:
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Name:
Title:
ABN AMRO BANK N.V.
By:
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Name:
Title:
By:
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Name:
Title:
AIMCO CDO SERIES 2000-A
By:
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Name:
Title:
ARCHIMEDES FUNDING III LTD.
By:___________________________
Name:
Title:
ARCHIMEDES FUNDING LLC
By:___________________________
Name:
Title:
BANCA COMMERCIALE ITALIANA LOS ANGELES
FOREIGN BRANCH
By:
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Name:
Title:
By:
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Name:
Title:
BANCA MONTE DEI PASCHI DI SIENA SPA
By:
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Name:
Title:
By:
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Name:
Title:
BANK OF AMERICA, N.A.
By:
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Name:
Title:
THE BANK OF NOVA SCOTIA
By:
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Name:
Title:
BANK ONE, N.A.
By:
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Name:
Title:
BANKERS TRUST COMPANY
By:
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Name:
Title:
BNP PARIBAS
By:
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Name:
Title:
By:
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Name:
Title:
CAPTIVA III FINANCE LTD.
By:____________________________
Name:
Title:
CAPTIVA IV FINANCE LTD.
By:_____________________________
Name:
Title:
CARIPLO - CASSA DI RISPARMIO DELLE PROVINCIE
LOMBARDE SPA
By:
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Name:
Title:
By:
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Name:
Title:
CIBC INC.
By:
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Name:
Title:
CITICORP U.S.A. INCORPORATED
By:
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Name:
Title:
COMMERZBANK AG
NEW YORK AND GRAND CAYMAN BRANCHES
By:
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Name:
Title:
By:
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Name:
Title:
CYPRESS MANAGEMENT PARTNERSHIP
By:_____________________________
Name:
Title:
DEUTSCHE BANK AKTIENGESELLSCHAFT,
NEW YORK BRANCH AND/OR CAYMAN ISLANDS
BRANCH
By:
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Name:
Title:
By:
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Name:
Title:
FERNWOOD ASSOCIATES L.P.
By:____________________________
Name:
Title:
FIRST HAWAIIAN BANK
By:
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Name:
Title:
FLEET NATIONAL BANK (f/k/a BANKBOSTON, N.A.)
By:
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Name:
Title:
FRANKLIN FLOATING RATE TRUST
By:____________________________
Name:
Title:
GALAXY CLO 1999-1, LTD.
By:____________________________
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & COMPANY
By:___________________________
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
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Name:
Title:
INDOSUEZ CAPITAL FUNDING III LIMITED,
BY INDOSUEZ CAPITAL AS PORTFOLIO ADVISOR
By:_____________________________
Name:
Title:
INDOSUEZ CAPITAL FUNDING IV L.P.,
BY INDOSUEZ CAPITAL AS PORTFOLIO ADVISOR
By:_____________________________
Name:
Title:
INDOSUEZ CAPITAL FUNDING VI LIMITED
By:
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Name:
Title:
KZH SOLEIL LLC
By:
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Name:
Title:
MELLON BANK, N.A.
By:
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Name:
Title:
NEMEAN CLO, LTD.
By:
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Name:
Title:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK
By:
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Name:
Title:
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEEN-
BANK B.A., "RABOBANK NEDERLAND", NEW YORK
BRANCH
By:
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Name:
Title:
By:
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Name:
Title:
SALOMON BROTHERS HOLDING COMPANY INC.
By:______________________________
Name:
Title:
THE SANWA BANK, LIMITED
By:
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Name:
Title:
SOCIETE GENERALE NEW YORK BRANCH
By:
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Name:
Title:
THE SUMITOMO BANK, LIMITED
By:
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Name:
Title:
THE TOKAI BANK LIMITED
By:
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Name:
Title:
UBS AG, STAMFORD BRANCH
By:
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Name:
Title:
UNICREDITO ITALIANO S.P.A.
By:
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Name:
Title:
By:
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Name:
Title:
WACHOVIA BANK N.A.
By:
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Name:
Title:
BANK OF AMERICA, N.A., as Agent
By:
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Name:
Title:
BANK OF AMERICA, N.A., as Collateral Agent
By:
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Name:
Title:
ACKNOWLEDGED:
BATTERY STREET ENTERPRISES, INC.
By:
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Title:
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LEVI ▇▇▇▇▇▇▇ FINANCIAL CENTER
CORPORATION
By:
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Title:
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LEVI ▇▇▇▇▇▇▇ FUNDING, LLC
By:
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Title:
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LEVI ▇▇▇▇▇▇▇ GLOBAL FULFILLMENT
SERVICES, INC.
By:
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Title:
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LEVI ▇▇▇▇▇▇▇ GLOBAL OPERATIONS, INC.
By:
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Title:
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LEVI ▇▇▇▇▇▇▇ INTERNATIONAL
By:
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Title:
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LEVI ▇▇▇▇▇▇▇ LATIN AMERICA, INC.
By:
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Title:
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LEVI'S ONLY STORES, INC.
By:
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Title:
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NF INDUSTRIES, INC.
By:
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Title:
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